In this case, the appellant lodged an age assessment appeal regarding Article 25A(7) of the Immigration Act, Chapter 217 of the Laws of Malta. The Immigration Appeals Board Division II however found that, given (a) the lack of authentic documentation from the appellant, (b) his physical appearance suggesting adulthood, (c) a bone age test, the appellant failed to prove beyond doubt that he is not an adult, and thus denied the appeal.
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In this case, the appellant lodged an appeal regarding his age assessment regarding Article 25A(7) of the Immigration Act, Chapter 217 of the Laws of Malta. The Immigration Appeals Board Division considered the bone age test conducted by the Agency for the Welfare of Asylum Seekers. However, given the high margin of error of these tests of 2-3 years and the lack of accuracy when looking at physical traits, the IAB Div I determined a holistic approach was most appropriate to determine the age of the appellant. As such, looking at the appellant’s date of birth as written on his vaccine card, birth certificate, and school certificate, IAB Div I concludes that the appellant was a minor and that AWAS had wrongly issued a decision using imprecise research.
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This case concerns detention for 8 months of 2 minors, aged 16 and 17, in a centre with deplorable conditions (overcrowding, lack of light and ventilation, absence of activities and tense atmosphere) while awaiting the outcome of their asylum procedure, in particular to determine their age, which constitutes a violation of Article 3 ECHR.
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Decision on interim measures ordering Malta to release child applicants to an accommodation with reception conditions that would be compatible with Article 3 of the Convention, having regard to their status as unaccompanied minors.
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The applicant was a Bangladeshi national who was rejected from his asylum application and served with a removal order before he was referred for an age assessment procedure by the competent authorities and assessed as an adult following a bone test despite providing his birth certificate. He appealed this decision and challenged the results of the bone test as being inaccurate.
In the meantime, the appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures was never assessed in his case and that due consideration should be given to the fact that he is a minor assessed as an adult through an inaccurate procedure.
The Board noted the physical appearance suggesting the applicant is young and considered that there are sufficient grounds to believe that the appellant could be a minor and should therefore be released pending the result of the age assessment appeal. The Board considered that since this was an appeal on the removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.
The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have care and custody of the appellant was to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.
However, the applicant was never released since his appointed representative (legal guardian) refused to act as the guarantor.
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The appellant is a Bangladeshi national who was rescued and disembarked in Malta in September 2019. He declared to be a minor born on 01 January 2003 upon arrival and was directly detained. The appellant was detained on health grounds until June 2020 where he was issued with a removal order. The appellant complained to his lawyers that he orally requested to apply for asylum but was never registered by the IPA and therefore was illegally issued with a removal order. Following the lawyer’s intervention, the appellant was released and formally registered as an asylum seeker in November 2020.
In the meantime the Agency for the Welfare of Asylum Seekers (AWAS) declared the appellant to be an adult in October 2020, the appellant’s lawyer filed an appeal before the Immgration Appeals Board and the case was first heard by Division II in November 2021.
In August 2021, the appellant was apprehended at Malta International Airport trying to embark on a flight to Italy in possession of fraudulent documents. He was handed a six month effective prison incarceration. Upon his release from Corradino Correctional Facility in December 2021, the appellant’s return decision was “re-activated” and the appellant was transferred to Safi Detention Centre pending removal to Bangladesh.
However, the Immigration Police was informed by the appellant’s lawyers that the appellant was still an asylum seeker and, following confirmation by the International Protection Agency, the appellant was issued with a detention order based on S.L. 420.06 which transposes the Reception Directive, in April 2022. The detention order was directly appealed while the decision on the age assessment appeal was still pending.
The appellant requested his immediate release in view of the excessive duration of his detention which amounted to a total of 14 months in Safi Detention Centre and 6 months in Corradino Correctional Facility and the unlawful enforcement of his removal order taken in June 2020 while still an asylum seeker claiming to be a minor.
The Immigration Appeals Board confirmed the detention order issued in April 2022 to be legal in view of the fact that the risk of absconding is real, also considering the fact that appellant tried to abscond from Malta to be later apprehended and handed a 6 month effective incarceration.
Nonetheless, the Immigration Appeals Board decided that in view of the fact that the appellant’s age assessment was still ongoing, the appellant must be presumed a minor. The Immigration Appeals Board therefore ordered the appellant to be shifted to the buffer zone within AWAS Open Centre under those conditions that are deemed appropriate and necessary by AWAS.
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